Citation Nr: 0528417
Decision Date: 10/21/05 Archive Date: 11/01/05
DOCKET NO. 00-14 578 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for cervical spine
degenerative arthritis, currently rated as 10 percent
disabling, from an initial grant of service connection.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. D. Deane, Associate Counsel
INTRODUCTION
The veteran served on active duty in the Army from May 1979
to June 1999.
This case first came before the Board of Veterans' Appeals
(Board) from a September 1999 rating decision rendered by the
St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA).
The veteran had a Travel Board hearing with a Judge from the
Board at the RO in June 2002. In a September 2005 letter,
the veteran was informed that the Judge who had conducted his
June 2002 hearing is no longer employed by the Board as well
as notified of his right to another Board hearing. As the
veteran did not respond to the letter within 30 days, the
Board will assume the veteran does not want an additional
hearing. In August 2002, the Board undertook additional
development, by means of a memorandum, in order to obtain an
additional VA examination report.
In July 2003, the Board remanded the appeal for action
consistent with Disabled American Veterans v. Sec'y of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board
again remanded the appeal in March 2004 for additional
development. The appeal has been returned to the Board for
further appellate action.
FINDINGS OF FACT
1. All the evidence requisite for an equitable disposition
of the veteran's claim have been developed and obtained, and
all due process concerns as to the development of his claim
have been addressed.
2. The veteran's service-connected cervical spine disability
is manifested by neck pain, no more than slight limitation
of motion, and radiologic findings of mild to moderate
cervical spondylosis; it does not equate to forward flexion
of the cervical spine limited to no more than 30 degrees, a
combined range of motion of the cervical spine limited to
170 degrees, or muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour.
CONCLUSION OF LAW
The criteria for an increased schedular disability rating in
excess of 10 percent for the veteran's service-connected
cervical spine disability are not met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5290
(2002 & 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Entitlement to an Increased Schedular Evaluation
In a September 1999 rating decision, the RO granted service
connection for cervical spine degenerative arthritis and
assigned a 10 percent rating, effective from July 1, 1999
under Diagnostic Codes 5003-5290. The veteran contends that
his service-connected cervical spine disability is more
severe than currently evaluated, and that an increased
evaluation should be assigned. After a review of the
evidence, the Board finds that the evidence does not support
the assignment of an increased rating under any of the
pertinent rating criteria.
The Board notes that the current appeal arose from the rating
assigned at the initial grant of service connection for the
veteran's cervical spine degenerative arthritis. In
Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted a
distinction between a claim for an increased rating for a
service-connected disability and an appeal from the initial
rating assigned for a disability upon service connection.
The Board will evaluate the level of impairment due to the
disability throughout the entire time of the claim as well as
consider the possibility of staged ratings. See Fenderson v.
West, 12 Vet. App. 119 (1999).
The severity of a service-connected disability is
ascertained, for VA rating purposes, by the application of
rating criteria set forth in VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (2005) (Schedule). To evaluate
the severity of a particular disability, it is essential to
consider its history. See Schafrath v. Derwinski, 1 Vet.
App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2005).
Where there is a reasonable doubt as to the degree of
disability, such doubt will be resolved in favor of the
claimant. See 38 C.F.R. §§ 3.102, 4.3 (2005). In addition,
where there is a question as to which of two disability
evaluations should be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. See 38 C.F.R. § 4.7 (2005).
As an initial matter, in considering the veteran's claim, the
Board acknowledges his complaints -- in personal statements,
VA examination reports, and the June 2002 hearing transcript
-- that he suffers from increased severity of his service-
connected cervical spine disability residuals. His lay
statements alone, however, cannot meet the burden imposed by
38 C.F.R. § 4.71a with respect to the current severity of his
service-connected cervical spine disability. See Moray v.
Brown, 2 Vet. App. 211, 214 (1993); Espiritu v. Derwinski, 2
Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (a)(2)
(2005).
During the pendency of this appeal, the schedule for rating
disabilities of the spine was revised effective on September
23, 2002 and on September 26, 2003. See 67 Fed. Reg. 54345-
54349 (August 22, 2002); 68 Fed. Reg. 51454-51458 (Aug. 27,
2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-
5243 (2005)). In addition, a correction to the regulation
published in 2003 was published in June 2004. See 69 Fed.
Reg. 32449 (Jun. 10, 2004). The current General Rating
Formula for Diseases and Injuries of the Spine will be
discussed in detail below.
The VA General Counsel has held that where a law or
regulation changes during the pendency of a claim for
increased rating, the Board should first determine whether
application of the revised version would produce retroactive
results. In particular, a new rule may not extinguish any
rights or benefits the claimant had prior to enactment of the
new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However,
if the revised version of the regulation is more favorable,
the implementation of that regulation under 38 U.S.C.A. §
5110(g), can be no earlier than the effective date of that
change. The VA can apply only the earlier version of the
regulation for the period prior to the effective date of the
change.
In evaluating the veteran's service-connected cervical spine
disability, the Board has reviewed and considered all of the
evidence in the veteran's claims folder.
Rating Criteria in Effect Prior to September 26, 2003
The veteran's cervical spine disability is currently
evaluated as 10 percent disabling under Diagnostic Codes
5003-5290. In the selection of code numbers assigned to
disabilities, injuries will generally be represented by the
number assigned to the residual condition on the basis of
which the rating is determined. With diseases, preference is
to be given to the number assigned to the disease itself; if
the rating is determined on the basis of residual conditions,
the number appropriate to the residual condition will be
added, preceded by a hyphen. See 38 C.F.R. § 4.27 (2005).
The hyphenated diagnostic code in this case indicates that
degenerative arthritis of the cervical spine under Diagnostic
Code 5003 is the service-connected disorder, and limitation
of motion of the cervical spine under Diagnostic Code 5290 is
a residual condition.
Service medical records reveal that the veteran went through
jump school during active service. A February 1981 treatment
note showed complaints in the back of the neck. Treatment
notes dated in May 1987 show that the veteran was treated for
cervical strain and complaints of upper extremity
paresthesias after an injury that occurred while he was
playing baseball. An August 1987 follow up note indicated
that the veteran's X-rays and range of motion of the cervical
spine were within normal limits.
Degenerative arthritis established by X-ray findings will be
evaluated on the basis of limitation of motion of the
specific joint or joints involved. When however, the
limitation of motion of the specific joint or joints involved
is noncompensable under the appropriate diagnostic code, a
rating of 10 percent is for application for each major joint
or group of minor joints affected by limitation of motion.
Limitation of motion must be confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002).
A September 1999 VA X-ray report listed an impression of
moderate cervical spondylosis. In the September 1999 VA
examination report, the examiner noted that the veteran
suffered from mild degenerative changes with anterior
osteophyte formation in the subaxial spine.
Limitation of motion of the cervical spine is evaluated as
slight (10 percent), moderate (20 percent), or severe (30
percent). 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003).
The Board observes that the words "slight" and "moderate"
are not defined in the Schedule. Rather than applying a
mechanical formula, the Board must evaluate all the evidence
to the end that its decisions are "equitable and just".
See 38 C.F.R. § 4.6 (2005). The Board further observes that
normal ranges of motion for the cervical spine were
promulgated in a recent edition of the Code of Federal
Regulations, 38 C.F.R. § 4.71a (Plate V) (2004), as follows:
flexion - 45 degrees; extension - 45 degrees; lateral flexion
(bilaterally) - 45 degrees; rotation (bilaterally) - 80
degrees. Id.
Range of motion test results were listed in the September
1999 VA examination report as flexion - 30 degrees, extension
- 30 degrees, lateral flexion - 40 degrees, and rotation - 55
degrees. Range of motion test results were listed in the
February 2003 VA examination report as flexion - 45 degrees,
extension - 45 degrees, lateral bending - 40 degrees, and
rotation - 45 degrees. Further, the examiner specifically
indicated that the veteran exhibited "normal" cervical
spine range of motion. In this case, the Board finds that
the range of motion test results for the veteran's cervical
spine do not more nearly approximate moderate limitation of
motion.
The Board is not free to ignore the effects of pain. An
evaluation of any musculoskeletal disability must include
consideration of the veteran's ability to engage in ordinary
activities, including employment, and of impairment of
function due to such factors as pain on motion, weakened
movement, excess fatigability, diminished endurance, or
incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59
(2002); DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran
is competent to report pain. The record, however, does not
demonstrate objective, satisfactory evidence of limitation of
function due to pain attributable to this cervical spine
disability to the extent that would support assignment of a
rating higher than 10 percent. In the July 1999 VA
examination report, the examiner specifically noted that the
veteran did not have motor weakness, excessive fatigability,
incoordination, or painful motion. After considering the
effects of the pain, limitation of motion, and fatigability,
as described in the records of examination and treatment, the
Board concludes that the disabling effects of the pain alone
do not meet or more nearly approximate the criteria for an
rating higher than 10 percent under 38 C.F.R. §§ 4.10, 4.40,
4.45, 4.59 (2002); DeLuca v. Brown, 8 Vet. App. 202 (1995).
In this case, the Board finds that the veteran's cervical
spine symptomatology does not meet or more nearly approximate
the criteria for a higher rating under Diagnostic Codes 5003
and 5290. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes
5003, 5290 (2002). Other Diagnostic Codes for the cervical
spine, which might provide for a higher disability rating,
are not applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes
5285 through 5295 (2002). It is not contended nor shown that
the veteran's service-connected cervical spine disability
includes symptoms of ankylosis, intervertebral disc syndrome,
or fracture of the spine.
Rating Criteria in Effect from September 26, 2003
The schedule for rating disabilities of the spine, including
cervical spine degenerative arthritis, was revised effective
September 26, 2003. See 68 Fed. Reg. 51454-51458 (Aug. 27,
2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-
5243(2005)).
The General Rating Formula for Diseases and Injuries of the
Spine provides as follows:
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated
under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes):
With or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease
Unfavorable ankylosis of the entire
spine.........................................100
Unfavorable ankylosis of the entire thoracolumbar spine
.....................50
Unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine.................................................................40
Forward flexion of the cervical spine 15 degrees or less;
or, favorable ankylosis of the entire cervical
spine....................................................................30
Forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees; or, forward flexion
of the cervical spine greater than 15 degrees but not
greater than 30 degrees; or, the combined range of motion of
the thoracolumbar spine not greater than 120 degrees; or,
the combined range of motion of the cervical spine not
greater than 170 degrees; or, muscle spasm or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis..............................20
Forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, forward flexion
of the cervical spine greater than 30 degrees but not
greater than 40 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, combined range of motion of the
cervical spine greater than 170 degrees but not greater than
335 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of the height......................................................10
Note 1 provides that associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, should be evaluated separately, under an
appropriate diagnostic code. Id.
Note 2 provides that for VA compensation purposes, normal
forward flexion of the cervical spine is zero to 45 degrees,
extension is zero to 45 degrees, left and right lateral
flexion are zero to 45 degrees, and left and right lateral
rotation are zero to 80 degrees. Normal forward flexion of
the thoracolumbar spine is zero to 90 degrees, extension is
zero to 30 degrees, left and right lateral flexion are zero
to 30 degrees, and left and right lateral rotation are zero
to 30 degrees. The combined range of motion refers to the
sum of the range of forward flexion, extension, left and
right lateral flexion, and left and right rotation. The
normal combined range of motion of the cervical spine is 340
degrees and of the thoracolumbar spine is 240 degrees. The
normal ranges of motion for each component of spinal motion
provided in this note are the maximum that can be used for
calculation of the combined range of motion. Id.
Note 3 provides that in exceptional cases, an examiner may
state that because of age, body habitus, neurologic disease,
or other factors not the result of disease or injury of the
spine, the range of motion of the spine in a particular
individual should be considered normal for that individual,
even though it does not conform to the normal range of motion
stated in Note 2. Provided that the examiner supplies an
explanation, the examiner's assessment that the range of
motion is normal for that individual will be accepted. Id.
Note 4 provides that each range of motion measurement should
be rounded to the nearest five degrees. Id.
Note 5 provides that for VA compensation purposes,
unfavorable ankylosis is a condition in which the entire
cervical spine, the entire thoracolumbar spine, or the entire
spine is fixed in flexion or extension, and the ankylosis
results in one or more of the following: difficulty walking
because of a limited line of vision; restricted opening of
the mouth and chewing; breathing limited to diaphragmatic
respiration; gastrointestinal symptoms due to pressure of the
costal margin on the abdomen; dyspnea or dysphagia;
atlantoaxial or cervical subluxation or dislocation; or
neurologic symptoms due to nerve root stretching. Fixation
of a spinal segment in neutral position (zero degrees) always
represents favorable ankylosis. Id.
Note 6 provides that disability of the thoracolumbar and
cervical spine segments will be separately evaluated, except
when there is unfavorable ankylosis of both segments, which
will be rated as a single disability. Id.
5235 Vertebral fracture or dislocation
5236 Sacroiliac injury and weakness
5237 Lumbosacral or cervical strain
5238 Spinal stenosis
5239 Spondylolisthesis or segmental instability
5240 Ankylosing spondylitis
5241 Spinal fusion
5242 Degenerative arthritis of the spine (see also
diagnostic code 5003)
5243 Intervertebral disc syndrome
Under the General Rating Formula, orthopedic and neurologic
abnormalities are evaluated separately. As shown above,
degenerative arthritis of the spine is rated under Diagnostic
Code 5242. Based on the medical evidence of record, the
Board finds that there are no objective compensable
neurologic manifestations associated with the veteran's
cervical spine disability. VA examination reports dated in
September 1999 and February 2003 show no neurologic findings
related to the veteran's cervical spine disability residuals.
As for the orthopedic manifestations, the Board notes that,
in the September 1999 and February 2003 VA examination
reports, the veteran's forward flexion was recorded as 30
degrees and 45 degrees, respectively. Further, his combined
range of motion of the cervical spine is calculated by the
Board as 250 degrees in September 1999 and as 260 degrees in
February 2003. The General Rating Formula essentially
removes the subjectivity in determining the severity of any
loss of motion, and, under the new criteria, these findings
do not support a rating higher than 10 percent for orthopedic
symptoms. Although the forward flexion of the cervical spine
was reported as 30 degrees in September 1999, it was reported
as normal, or 45 degrees, in February 2003. Taking into
account all the evidence of record, the Board concludes that
the evidence does not more nearly approximate forward flexion
greater than 15 degrees but not greater than 30 degrees.
Therefore, an evaluation in excess of 10 percent is not
warranted under the rating criteria currently in effect, as
the veteran does not have forward flexion of the cervical
spine limited to no more than 30 degrees, a combined range
of motion of the cervical spine limited to 170 degrees, or
muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour.
The criteria for a rating in excess of 10 percent under the
final revised criteria in Diagnostic Code 5242 have not been
met. The veteran's disability does not meet or more nearly
approximate the criteria for a rating in excess of 10 percent
under Diagnostic Code 5242. See 38 C.F.R. §§ 4.7, 4.71a,
Diagnostic Code 5242 (2005). The Board has also considered
whether a "staged" rating is appropriate. See Fenderson v.
West, 12 Vet. App. 119, 126 (1999). The record, however,
does not support assigning different percentage disability
ratings during the time period in question.
Extraschedular Rating
The RO also determined that referral to the Under Secretary
for Benefits or the Director of the Compensation for an
extraschedular rating was not warranted. Under 38 C.F.R
§ 3.321(b)(1), in exceptional cases where schedular
evaluations are found to be inadequate, consideration of an
extraschedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities is made. The governing
norm in an exceptional case is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. See 38 C.F.R § 3.321(b)(1) (2005).
In this case, the Schedule is not inadequate. Higher ratings
are available under the Schedule for the veteran's service-
connected cervical spine disability. But, as discussed
above, the presence of findings meeting the schedular
criteria for a greater rating have not been shown. In
addition, it has not been shown that the service-connected
cervical spine disability alone has required frequent periods
of hospitalization or produced marked interference with the
veteran's employment. For these reasons, the assignment of
an extraschedular rating for the veteran's cervical spine
disability is not warranted.
II. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) notice, as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable RO decision on a
claim for VA benefits. As discussed below, VA fulfilled its
duties to inform and assist the veteran on this claim.
Accordingly, the Board can issue a final decision because all
notice and duty to assist requirements have been fully
satisfied, and the veteran is not prejudiced by appellate
review.
The Board notes that VAOPGCPREC 8-2003 held that, if, in
response to notice of its decision on a claim for which VA
has already given the section 5103(a) notice, VA receives a
notice of disagreement that raises a new issue, section
7105(d) requires VA to take proper action and issue a
statement of the case if the disagreement is not resolved,
but section 5103(a) does not require VA to provide notice of
the information and evidence necessary to substantiate the
newly raised issue.
In the present case, a substantially complete application for
the veteran's service connection claim was received in July
1999. Thereafter, in a rating decision dated in September
1999, the veteran's claim for entitlement to service
connection for cervical spine degenerative arthritis was
granted. In this case, the issue concerning the evaluation
of the veteran's cervical spine disability was initially
raised in a notice of disagreement following the assignment
of the initial disability evaluation. VAOPGCPREC 8-2003
holds that the section 5103(a) notice need not be sent;
rather, the procedures of section 7105(d) apply.
Nonetheless, in the April 2001 letter from the RO and October
2004 letter from the Appeals Management Center (AMC), the
veteran was notified regarding what information and evidence
is needed to substantiate his claim, what information and
evidence must be submitted by the veteran, what information
and evidence will be obtained by VA, and the need for the
claimant to submit any evidence in his possession that
pertains to the claim.
The Board also finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the veteran in the April 2001
and October 2004 letters was not given prior to the first AOJ
adjudication of the claim, the notice was provided by VA, and
the content of the notice fully complied with the
requirements of U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2005), and Quartuccio v. Principi, 16 Vet. App.
183 (2002). In addition, in this case, the VCAA was enacted
in November 2000 after the original AOJ adjudication of the
claim in 1999. The Court specifically stated in Pelegrini v.
Principi, 18 Vet. App. 112 (2004) that an appellant has the
right to remand where VCAA content-complying notice had not
been provided. However, the Court recognized that the RO did
not err by not providing notice of VCAA prior to the RO's
decision when, as here, the initial AOJ adjudication occurred
before the enactment of the VCAA. Further, after the notice
was provided, the case was readjudicated in a March 2005
Supplemental Statement of the Case (SSOC). The veteran has
been provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices. Therefore, to decide the appeal would not be
prejudicial error to the veteran. See Mayfield v. Nicholson,
19 Vet. App. 103 (2005).
To the extent that section 5103(a) notice requirements apply
in this case, the Board finds that the VCAA notice
requirements have been satisfied with respect to the
veteran's evaluation for cervical spine degenerative
arthritis. VCAA notice consistent with 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. The "fourth element" of the
notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). The letters from VA dated in April 2001 and
October 2004 and the March 2005 SSOC, complied with these
requirements.
Additionally, the Board notes that the October 2004 letter to
the veteran properly notified him of his statutory rights.
That is, even though the October 2004 letter encouraged a
response within 60 days, a recently enacted amendment to the
VCAA clarified that the one-year period within which evidence
may be submitted does not prohibit VA from making a decision
on a claim before expiration of that time period. See
38 U.S.C. §§ 5102, 5103 (West 2002 & Supp. 2005).
As for VA's duty to assist a veteran, the veteran's available
service medical records and multiple VA examination reports
have been obtained and associated with the file. There is no
indication that relevant (i.e., pertaining to treatment for
the claimed disability) records exist that have not been
obtained. The duty to assist also includes providing a
medical examination or obtaining a medical opinion when such
is necessary to make a decision on the claim. In this case,
the veteran was provided with multiple VA examinations.
The Board finds that VA has done everything reasonably
possible to assist the veteran. A remand or further
development of these claims would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and
assist the veteran in this case. Further, VA's efforts have
complied with the instructions contained in Remand from the
Board dated in March 2004. See Stegall v. West, 11 Vet. App.
268 (1998). Further development and further expending of
VA's resources is not warranted. Any "error" to the
veteran resulting from this Board decision does not affect
the merits of his claim or his substantive rights, for the
reasons discussed above, and is therefore harmless. See 38
C.F.R. § 20.1102 (2004). There is no reasonable possibility
that further assistance to the veteran would substantiate his
claim. See 38 C.F.R. § 3.159(d) (2005).
ORDER
An increased evaluation for cervical spine degenerative
arthritis is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs